ARE Rule 510: Waiver of privilege by voluntary disclosure

Alabama Rules of Evidence

Article V. Privileges

Rule 510. Waiver of privilege by voluntary disclosure

A person upon whom these rules confer a privilege against disclosure waives the privilege if the person or the person’s predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This rule does not apply if the disclosure itself is privileged.

Advisory Committee’s Notes

This rule, stated substantially in the language of the corresponding Uniform Rule of Evidence, sets forth in express terms what is to be implied from the statement of all privileges – i.e., the privilege falls when that which is protected by the privilege is voluntarily disclosed by the holder. See Unif.R.Evid. 510. Such a waiver may occur, for example, when the holder allows an unnecessary third party to be privy to an otherwise privileged communication. Additionally, it may arise when the holder tells a third party about the privileged matter. See, e.g., Perry v. State, 280 Ark. 36, 655 S.W.2d 380 (1983) (clergyman privilege waived by disclosure of inculpatory statements to others); State v. Jackson, 97 N.M. 467, 641 P.2d 498 (1982). This waiver doctrine is consistent with preexisting Alabama law. See Ex parte Great Am. Surplus Lines Ins. Co., 540 So.2d 1357 (Ala.1989) (attorney-client privilege); Swoope v. State, 115 Ala. 40, 22 So. 479 (1897) (husband-wife privilege); C. Gamble, McElroy’s Alabama Evidence §§ 394.01 (waiver of attorney-client privilege), and 103.01(4) (husband-wife privilege) (4th ed. 1991).

The waiver doctrine has two significant limitations. First, waiver arises only when the holder has disclosed, or allowed disclosure of, the “privileged matter.” The client does not waive the attorney-client privilege, for example, by disclosing the subject discussed without revealing the substance of the discussion itself. See Fed.R.Evid. 511 (not enacted) advisory committee’s note; E. Cleary, McCormick on Evidence § 93 (3d ed. 1984). Even if the holder discloses a portion of the privileged matter, however, the second limitation is that the disclosure must be of a “significant part” of it. Disclosure of an insignificant part of the privileged matter does not waive the privilege. Whether a significant part of the privileged matter has been disclosed is a common sense question for the judge. See N.D.R.Evid. 510 explanatory note. It should be observed, of course, that the holder need not disclose every detail of the privileged matter in order to waive the privilege. See Or.R.Evid. 511 legislative commentary. No waiver occurs if the disclosure, even of a significant part of the privileged matter, is made in the course of another privileged communication. Perry v. State, 280 Ark. 36, 655 S.W.2d 380 (1983).

The concept of fairness underlies the waiver doctrine. It has been held unfair to permit offensive assertion of a privilege. When a party, for example, offers a portion of the privileged matter in proof of his or her case, fairness dictates that the opponent be allowed to offer or discover the remainder. Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105 (Tex. 1985). This is consistent with preexisting Alabama law under which the attorney-client privilege falls when a plaintiff client puts the attorney-client communications at issue or charges the attorney with misconduct. Ex parte Malone Freight Lines, Inc., 492 So.2d 1301 (Ala.1986); Dewberry v. Bank of Standing Rock, 227 Ala. 484, 150 So. 463 (1933).